State v. Nason

FILED: October 2, 2002

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

JUSTIN DOUGLAS NASON,

Appellant.

CM0021765; A114195

Appeal from Circuit Court, Benton County.

Henry R. Dickerson, Jr., Judge.

On Joint Motion for Vacation of Amended Judgment and for Reinstatement of Original Judgment filed August 13, 2002.

David Groom, Acting Executive Director, Office of Public Defense Services, Monica L. Finch, Deputy Public Defender, Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Janet A. Klapstein, Assistant Attorney General, for motion.

Before Brewer, Presiding Judge, and Wollheim and Kistler, Judges.

PER CURIAM

Judgment entered March 22, 2001, vacated and remanded with instructions to reenter judgment entered February 7, 2001.

PER CURIAM

Defendant pled guilty to two counts of being a felon in possession of a firearm. The trial court sentenced him to two 12-month consecutive sentences. Although the trial court intended that defendant serve those sentences in Department of Correction facilities, it overlooked ORS 137.124(2), which requires that sentences of 12 months or less be served in local custody. That statute permits consecutive sentences to be served in a state correctional facility but only if one of the consecutive sentences exceeds 12 months. See ORS 137.124(2)(b). After defendant began serving his sentence, the trial court modified the sentences to impose a 13-month term on one count and an 11-month term on the second count.

Defendant has appealed, challenging the modification of his sentence. The state concedes that the trial court erred and that the amended judgment does not merely correct a clerical or arithmetic error. The state also agrees with defendant that the original judgment of conviction should be reentered. We accept the state's concession. We accordingly vacate the modified judgment and remand with instructions to reenter the original judgment.

Judgment entered March 22, 2001, vacated and remanded with instructions to reenter judgment entered February 7, 2001.